United States v. Clark

• Decision Date: 30 March 1927
• Docket Number: 547,552.,548,No. 532,532
• Citation: 18 F.2d 442
• Parties: UNITED STATES v. CLARK, and three other cases.
• Court: U.S. District Court — District of Montana

18 F.2d 442 (1927)

UNITED STATES v. CLARK, and three other cases.

Nos. 532, 547, 548, 552.

District Court, D. Montana.

March 30, 1927.

Wellington D. Rankin, U. S. Atty., of Helena, Mont.

John L. Slattery and W. J. Tighe, both of Great Falls, Mont., for defendants.

PRAY, District Judge.

The petitioners assert that the affidavits for search warrants in all of the foregoing cases were defective, for the reason that no probable cause was shown therein for their issuance, and that the property sought under the search warrants was not particularly described. The affidavits in three of the above cases, 532, 548, and 552, are as follows:

"Before me, Wilmer Jeanette, a United States commissioner for the District of Montana, personally appeared Charles L. Sheridan, who, being by me first sworn and orally examined, deposes and says that he is a duly appointed and qualified officer of the customs, to wit, collector of customs, Thirty-Third District, authorized to make searches and seizures under the customs laws, and that he has cause to suspect and does believe that certain merchandise, to wit, smuggled merchandise from Canada, a more particular description of which cannot now be given, upon which the duties have not been paid, or which has otherwise been brought into the United States contrary to law, and that he verily believes said merchandise to be now contained within the premises of Carol Clark, said premises being described as frame dwelling, situate at lot 20, block 5, in the town of Shelby, Toole county, Mont."

And in the search warrant issued by the commissioner the following appears: "Whereas said Charles L. Sheridan has stated under his oath that he has cause to suspect and does believe that certain merchandise, to wit, smuggled merchandise from Canada, a more particular description of which cannot now be given, upon which the duties have not been paid. * * *" The affidavit and warrant in case No. 547 are substantially the same, except that the merchandise is described as: "Merchandise smuggled in violation of sections 593 and 597 of the Tariff Act of 1922." The premises searched by the customs officers are all situated in Shelby and about 40 miles south of the international boundary line. In my opinion, the affidavits for search warrants do not conform to the requirements of the Fourth Amendment to the Constitution either as to probable cause or in respect to the property to be seized. The Fourth Amendment provides that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In Byars v. United States, 47 S. Ct. 248, 71 L. Ed. ___, Mr. Justice Sutherland said: "The information upon which the search warrant was issued states only that affiant `has good reason to believe and does believe the defendant has in his possession' such intoxicating liquors, instruments and materials. The warrant clearly is bad if tested by the Fourth Amendment and the laws of the United States. Chapter 30, title 11, §§ 3-6, 40 Stat. 217, 228, 229 (Comp. St. §§ 10496¼c-10496¼f); chapter 85, title 2, § 2, 41 Stat. 305, 308 (Comp. St. § 10138½a). See Ripper v. United States (C. C. A.) 178 F. 24, 26; United States v. Borkowski (D. C.) 268 F. 408, 410, 411; United States v. Kelly (D. C.) 277 F. 485, 486-489. * * * Nor is it material that the search was successful in revealing evidence of a violation of a federal statute. A search prosecuted in violation of the Constitution is not made lawful by what it brings to light; and the doctrine has never been recognized by this court, nor can it be tolerated under our constitutional system, that evidences of crime discovered by a federal officer in making a search without lawful warrant may be used against the victim of the unlawful search where a timely challenge has been interposed. Weeks v. United States, 232 U. S. 383, 393, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. United States, 255 U. S. 298, 306, 41 S. Ct. 261, 65 L. Ed. 647; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 391, 40 S. Ct. 182, 64 L. Ed. 319; Agnello v. United States, 269 U. S. 20, 33, 46 S. Ct. 4, 70 L. Ed. 145. * * * The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the Colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right."

In Schencks v. United States, 55 App. D. C. 84, 2 F.(2d) 185, the defendant was convicted of selling narcotics, and of selling narcotics in other than original stamped packages, upon evidence obtained under an illegal search warrant. Two federal narcotic inspectors separately deposed before a United States commissioner that a third person had told them that he had purchased cocaine from defendant. Neither of the affidavits stated that the money paid for the cocaine was marked. The informer made no affidavit, and gave no testimony before the commissioner concerning the purchase of cocaine by him from defendant, as set forth in the affidavits of the officers. The court held: "If the peace officer has reason to believe and does believe that a search or seizure ought to be made, he should state in his affidavit the facts which led him to that conclusion, and which were known to him of his own knowledge. If he has no first-hand information as to the material facts, but had been informed by another as to facts or conditions which would justify the issuance of process for search or seizure, the officer should secure the informer's affidavit positively alleging of the latter's own knowledge the existence of...